The Right to Legal Representation and Equality before the Law in Criminal Proceedings in Botswana

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Citation: (2011) 22 Stell LR 94
• Date: 16 August 2019
• Pages: 94-114
• Author: R J V Cole

94

THE RIGHT TO LEGAL REPRESENTATION

AND EQUALITY BEFORE THE LAW IN

CRIMINAL PROCEEDINGS IN

BOTSWANA

RJV Cole

LLB BL LLM LLD

Lecturer, Department of Law, University of Botswana*

1 Introduction

Like all modern democr acies, the right to legal repres entation is

guarantee d by the Constitution of Botswana1 (“t he Constit ution of

Botswana”). But sadly, constitutional provisions by thems elves do not offer

protection of fundame ntal human rights. C onstitutional provisions become

mere rhetoric and insufcient mechan isms for the protection of human

rights, if proper meas ures are lacking t o ensure that they ar e followed

through. If the r ight to legal representation is to be at tained, the t hesis that

rst generation civil and political rights a re negative r ights which merely

forbid the state from violating the r ights of the individual is u nsustainable.

The right to legal represent ation is meant to ensure pr ocedural equal ity.

The state has a sta nding body of trained pr osecutors who are suppor ted by

the police. Adversarialism is about “combat”, and the dis advantage suffered

by the unreprese nted accused facing a t rained prosecutor is in si militude

with pitting an un armed peasa nt in contest against an a rmed gladiator. No

matter how fair the proce ss, how generous the prosecutor and how helpful

the court to the a ccused, if he is made to st and trial un represented and face

a trained prosecut or, he is immediately and fund amentally disadva ntaged.2

Therefore, a crimi nal trial remai ns potentially unfai r if the accused is

unrepresente d. Concepts like equal ity before the law, access to justice

and other procedura l rights remain hollow promises if t he right to legal

* This art icle is a revised versio n of a chapter of the author ’s thesis, RJV Cole Equ ality of Arms and A spects

of the Right to a Fair Cri minal Trial in Botswana LLD th esis Stellenbosch Universi ty (2010) Promote r

Prof SE van der Mer we

1 Constitut ion of Botswana, 1966

2 In the civil ca se of Airey v Ireland ECHR (1979) Series A No 32; (1980) 2 EHRR 305 314-315, the applicant

wanted to pet ition for judicial separat ion in the Irish High Cou rt but could not afford to hir e a lawyer

The test applie d by the Court was whethe r the applicant was able to pres ent her case satisfactor ily and

properly The Cour t, applying the a dversarial requ irement, said:

“It se ems certa in to the Cour t that the appl icant would be at a dis advantage if he r husband were

represente d by a lawyer and she were not Quite apa rt from this eventu ality, it is not realistic, in t he

Court’s opinion , to suppose that , in litigation of thi s nature, the ap plicant could effect ively conduct her

own case, despit e the assistanc e which, as was stre ssed by the governme nt, the judge afford s to parties

acting in pe rson ”

(2011) 22 Stell LR 94

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representation is not att ainable.3 The right to legal repre sentation should

ideally include the provision of legal representation by the st ate where the

accused cannot af ford one. In Botswana, there is a const itutional right to

legal representation without a concom itant provision of legal aid. Legal aid

is central to equal ity before the law.4 Therefore, the main obstacle to the f ull

realisation of the right is the availabil ity and allocation of fund s for legal

aid.5

This art icle examines the constitut ional and statutor y guarante es in

relation to the right to legal represe ntation. The second par t discusses the

constitutional basis for the r ight to legal representation in B otswana and

articulates it s scope, application and limitations. The thi rd part underlines the

statutory reg ulation of the right, while the fourth par t articulates the relevance

of legal representation to the concept of equ ality before the law, recognising

the disadvantages suf fered by the unrepr esented accused in t he adversarial

system. The fth pa rt disc usses the all-importa nt duty of judicial ofcers

to inform an un represented accu sed of his right to legal represent ation. It is

argued that failu re by the courts to recognise t his duty as a constitutional rig ht

has sig nicant consequences for the r ight to legal representation. The sixth

part discusse s the absence of a comprehensive legal aid system in Botswan a

and sheds light on pending refor ms. The article concludes that t he present

constitutional f ramework in relation to legal represent ation is inconsistent

with equality before the law in t hat it imposes no duty on the state to provide

legal representation. It is concluded that the s olution to the problem lies in a

comprehensive state-funde d legal aid programme.

2 The constitut ional basis of the right to legal repr esentation

2 1 Scope of the right

The right of an accused to legal re presentation at tr ial is guarantee d

by constitutional and st atutory provisions. It is a fu ndamental right a nd

3 C Harlow “Access to Justic e as Human Rig hts: The Europe an Convention and t he European Un ion”

in P Alston (ed) The EU a nd Human Rights (1999) 186 187; P Traest & T Gombeer “The Autono my of

Defense and Defen se Counsel” (2007) 1 Ius Gent ium 97; LW Schroeter “Attor ney Representation: A n

Essential R ight or Not?” (05-08-2003) Washing ton State Access to J ustice Board <http://www wsba org/

atj/committees/jurisprudence/attyrep htm> (accessed 20-05-2010)

The Europea n Court of Human Rights h as relied on the principle of equ ality of arms to ensu re that

unrepre sented litigants in civil ca ses present their cases pr operly and satisfactori ly In this regard the

Court held th at the state should p rovide legal repre sentation for un represente d litigants in civ il cases in an

adversar ial system See Airey v Ir eland ECHR (1979) Series A No 32; (1980) 2 EHRR 305

4 R Clayton & H Tomlins on The Law of Human Righ ts I (2000) 649

5 As A Lester Lega l Aid in A Democratic Soci ety (1974) paper presented at a confe rence on Legal Aid in

South Afric a hosted by the Faculty of Law, Universit y of Natal in Durban, 02-07-1973 to 06 -07-1973,

(publication of Fac ulty of Law University of Nat al) notes:

“It was well understood t hat poverty, ignora nce and fear among wou ld-be litigants , the obscurit y of the

law, and the cost of delays of lit igation, were major im pediments to the a ttainment of genu ine equality

before the law ”

JG Fry nas “Problems of Acc ess to Court s in Nigeria: Result s of a Survey of Legal Pr actitioners ” (2001)

10 So cial and Legal Studies 397 406; F Rey ntjens “Africa – South of the Saha ra” in EH Zemans (ed)

Perspective s on Legal Aid: An Internationa l Survey (1979) 12 13-14; PM Bekker “The R ight to Legal

Representa tion, including Effec tive Assistance, for an Ac cused in the Crim inal Justice System of Sou th

Africa” (200 4) 37 CILSA 173 179

THE RIGHT TO LEGAL REPRESENTATION AND EQUALITY 95

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